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GOVERNMENT OF INDIA
LAW COMMISSION OF INDIA
Report No.261
Need to Regulate Pet Shops and Dog and Aquarium Fish Breeding
August 2015
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Justice Ajit Prakash Shah Former Chief Justice of Delhi High court
Chairman Law Commission of India
Government of India 14th Floor, Hindustan Times House
Kasturba Gandhi Marg New Delhi – 110 001
D.O. No.6(3)/279/2015-LC(LS) 28 August, 2015 Dear Shri Sadananda Gowda ji, The Law Commission of India received a letter from the Animal Welfare Board of India in May this year, seeking guidance regarding the Central Government’s authority to enact rules regulating certain animal shops and breeders. Though at first the Commission felt it difficult to take up the issue for study, on receipt of several representations from across the country, it was felt prudent to go into the matter in detail. The issue relates to the question as to whether the Government is empowered to notify three sets of rules regarding pet shops, dog breeding and aquarium fish breeding. The Ministry of Environment, Forests and Climate Change, in consultation with Ministry of Law and Justice had pleaded helplessness in notifying these rules quoting the absence of enabling provision in the Prevention of Cruelty to Animals Act, 1960. The recommendation of the Commission in the matter is sent herewith in the form of Commission’s Report No.261 titled “Need to Regulate Pet Shops and Dog and Aquarium Fish Breeding”, for consideration by the Government. In his letter dated 24 August 2015, one Ex-Officio Member, Shri P K Malhotra, Law Secretary, has expressed his view that “it may not be appropriate on the part of the Law Commission to give any Report on the subject” as the Department of Legal Affairs is reviewing its advice given in 2012 on the matter. While the Commission has taken this letter on record, it is of the view that even if the Department is reviewing its earlier advice, the present Report will only act as a supporting document. Further, so much of manpower and efforts will go waste if the report is not issued after completion. Moreover, it is the prerogative of the Government to accept or not to accept the Report. Another Ex-Officio Member, Dr. Sanjay Singh, Secretary, Legislative Department, suggested certain changes to the Report, which were carried out. However, he has returned the Report without affixing his signature. With warm regards,
Yours sincerely,
Sd/-
[Ajit Prakash Shah] Shri D.V. Sadananda Gowda Hon’ble Minister of Law and Justice Shastri Bhawan New Delhi – 110 015
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Report No.261
Need to Regulate Pet Shops and Dog and Aquarium Fish Breeding
Table of Contents
Chapter Title Pages
I BACKGROUND TO THE REPORT 1-10
A. Introduction 1-3
B. Representations received by the Commission
3-9
C. Present Report of the Commission 9-10
II LEGAL FRAMEWORK GOVERNING PET SHOPS, DOG BREEDING AND AQUARIUM FISH BREEDING IN INDIA
11-26
A. Question 1 13-19
B. Question 2 19-26
III RECOMMENDATIONS 27-28
1
CHAPTER I
BACKGROUND TO THE REPORT
A. Introduction
1.1.1 In May 2015, the Law Commission of India
(“the Commission”) received a letter from Major General
(Retd) Dr R.M. Kharb, the Chairman of the Animal
Welfare Board of India (“AWBI”), which is a statutory
body established under the Prevention of Cruelty to
Animals Act, 1960 (“the PCA Act”). The letter from the
AWBI Chairman sought guidance regarding the Central
Government’s authority to enact rules regulating
certain animal shops and breeders.
1.1.2 The AWBI had drafted three sets of rules
regarding pet shops (“Pet Shop Rules, 2010”), dog
breeding (“Dog Breeding, Marketing and Sale Rules,
2010”), and aquarium fish breeding (“Aquarium Fish
Breeding and Marketing Rules”), and sent it onward to
the Animal Welfare Division of the Ministry of
Environment, Forests and Climate Change (“MoEF”) for
scrutiny. But the Animal Welfare Division, MoEF
indicated that it was not empowered to notify such rules
under the Prevention of Cruelty to Animals Act, 1960
(“the PCA Act”).
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1.1.3 MoEF had also sought the opinion of the
Ministry of Law and Justice (“MLJ”) on the issue, a copy
of which was also forwarded to the Commission.
According to the MLJ, the PCA Act is silent with respect
to pet shops, dog breeding and aquarium fish breeding,
and that rules cannot be framed unless there is an
enabling provision that confers power on the Central
Government to do so. The MLJ further noted that,
although section 38 of the PCA Act provides that “the
Central Government may make rules providing for all or
any of the following matters, namely: . . . (l) any other
matter which has to be, or may be prescribed,” there
must still be a specific enabling/substantive provision
regarding the matter to be regulated, and section 38
does not mention pet shops, dog breeding, or aquarium
fish breeding.
1.1.4 On his part, the AWBI Chairman pointed out
that the Government had earlier notified rules regarding
performing animals, slaughter houses, animal birth
control, draught and pack animals, and the licensing of
farriers, and therefore, requested guidance from the
Commission regarding the rules in question relating to
pet shops, dog breeding, and aquarium fish breeding.
1.1.5 In its response to the AWBI Chairman dated
28 May 2015, the Commission expressed its inability to
take up the study on the subject at that time. However,
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the Commission received several representations
around the same time, urging it to take up the issue,
and, therefore, the Commission decided that it would be
prudent to examine the issue in further detail.
B. Representations received by the Commission
1.2.1 The Commission received a large number of
representations on the issue from animal rights and
animal welfare organisations from across the country. A
summary of the information relating to pet shops, dog
breeding and aquarium fish breeding based on
information received through representations as well as
news reports, is provided in the following paragraphs.
1.2.2 The Wildlife (Protection) Act, 1972 (“WPA”),
prohibits sale of certain animals1 in pet shops. However
these sales are continuing.2 All kinds of animals can be
found for sale in animal markets across the country,
and they are kept in terribly inhumane conditions.
Puppies are drugged to prevent them from crying, large
birds are stuffed into small cages and fish become
stressed and sometimes die because of confinement,
crowding, contaminated water and unnatural
1 Animals mentioned in Schedule I and II of the Wildlife (Protection) of the Act, 1972. 2 See Jose Louies, Taming the Wild: An Overview of Pet Trade in India, in WWF-INDIA, ILLEGAL WILDLIFE TRADE IN INDIA 3 (2014), available at http://awsassets.wwfindia.org/downloads/traffic_panda_8_oct.pdf; HC Seeks Status of Rules on Regulating Sale of Animals, Birds, New Indian Express (Apr. 14, 2015), http://www.business-standard.com/article/pti-stories/hc-seeks-status-of-rules-on-regulating-sale-of-animals-birds-115041400770_1.html.
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temperatures. 3 Other common harmful practices
include de-beaking birds, docking the tails of dogs,
selling unweaned pups, and de-clawing kittens. 4
Animal breeding is also cruel. Many animals do not
survive the trauma of being transported in small cages
without adequate water or food, and estimates suggest
that, overall, 40% of animals die in captivity or
transportation.5 Moreover, even star tortoises and other
protected animals are sold openly,6 and wild animals
(including parakeets, munias and mynas) are caught
and sold in complete violation of the WPA.7
1.2.3 It is estimated that for every bird sold in the
market, two die en route. Fledglings are stolen from their
nests and smuggled to market in cartons and tiny
boxes, and some are even rolled up inside socks during
transport to cities. Captive birds’ wings are crudely
clipped with scissors to prevent them from flying.8 The
3 Animals Used for Entertainment, PETA http://www.petaindia.com/issues/animals-in-entertainment/ (last visited Aug. 5, 2015). 4 Cruelty in Pet Shops: Plea to Law Panel for Rules, Times of India (July 3, 2015), http://timesofindia.indiatimes.com/city/delhi/Cruelty-in-pet-shops-Plea-to-law-panel-for-rules/articleshow/47918728.cms. 5 Cruelty in Pet Shops: Plea to Law Panel for Rules, Times of India (July 3, 2015), http://timesofindia.indiatimes.com/city/delhi/Cruelty-in-pet-shops-Plea-to-law-panel-for-rules/articleshow/47918728.cms. 6 Animals Used for Entertainment, PETA http://www.petaindia.com/issues/animals-in-entertainment/ (last visited Aug. 5, 2015). 7 Cruelty in Pet Shops: Plea to Law Panel for Rules, Times of India (July 3, 2015), http://timesofindia.indiatimes.com/city/delhi/Cruelty-in-pet-shops-Plea-to-law-panel-for-rules/articleshow/47918728.cms. 8 In Abdulkadar Mohamad Azam Sheikh v. Gujarat (2011), a similar issue was raised before the Gujarat High Court. See also Chief Forest Conservator (Wildlife) v. Nisar Khan, (2003) 4 S.C.C. 595; Sansar Chand v. Rajasthan, (2010) 10 S.C.C. 604. In these cases, the Court has looked at the illegal trade of wildlife.
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birds are doomed to a lifetime in cramped cages in
which they can hardly stretch their wings.
1.2.4 Despite the WPA, which bans the trade and
trapping of all indigenous birds, and Convention on
International Trade in Endangered Species of Wild
Fauna and Flora (“CITES”),9 which restricts the trade in
foreign birds, a black market in birds thrives openly,
involving many of the country’s estimated 1,200
species.10 Laws designed to protect India’s birds are well
intentioned but rarely enforced. In addition, there is a
clandestine network of extremely well-organized
persons, from pet-store owners to other dubious sellers,
who use the internet to service their clients.11 ‘Wildlife
pet lovers’ spend exorbitant amounts to get such exotic
pets, so much so that the global illegal pet trade
industry is estimated to be worth millions of US
dollars.12
9 The United Nations Convention on International Trade In Endangered Species of Wild Fauna And Flora (CITES) came into effect in order to protect rare and endangered species of wild fauna and flora against over-exploitation. The convention ensures that international trade does not pose a threat to the survival of species in the wild. The convention also provides strict regulation of exports of those species threatened by trade. Even the keeping of a permissible bird must be in conformity with the provisions of Section 11 of the Prevention of Cruelty to Animals Act, which stipulates that any person who keeps and confines any animal in any cage which does not measure sufficiently to permit the bird a reasonable opportunity of movement or does not provide the bird with sufficient food, drink and shelter shall be guilty of treating that bird cruelly. 10 Pallava Bagla, India's Black Market in Birds Threatening Rare Species, NAT’L
GEOGRAPHIC (Oct. 2, 2002), http://news.nationalgeographic.com/news/2002/10/1002_021002_indiabirds.html. 11 See Jose Louies, Taming the Wild: An Overview of Pet Trade in India, in WWF-INDIA, ILLEGAL WILDLIFE TRADE IN INDIA 3, 3 (2014). 12 See Jose Louies, Taming the Wild: An Overview of Pet Trade in India, in WWF-INDIA, ILLEGAL WILDLIFE TRADE IN INDIA 3, 3 (2014).
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1.2.5 People for the Ethical Treatment for Animals
(“PETA”) India submitted that India had a “multi-crore
but essentially unregulated pet trade,” growing at a rate
of about 20% per year, with the Indian pet-care market
alone estimated to reach about Rs 800 crore in 2015.
PETA pointed out that there were thousands of breeders
and pet shops in the India market, but no specific law
protected the animals they used. Without any
regulations, pet shops suffered from various problems,
such as “poor housing [for animals], terrible [animal]
hygiene, cruel breeding practices, a lack of veterinary
care, cruel transport, high rates of morbidity, illness,
disease, untrained workers, [and] rough handling”.
Further, the poor conditions in pet shops and a lack of
basic veterinary care “also place pet shop employees
and general public at risk of contracting zoonotic
diseases such as salmonellosis and psittacosis”.
Besides the terrible conditions, pet shops also trade in
animals and birds that are protected under law, e.g.,
under WPA and CITES.
1.2.6 In his representation, Shri Sharath Babu R,
Honorary Wildlife Warden Bangalore, and the
Environment Advisor, Bruhath Bangalore Mahanagara
Palike, Forest Cell, pointed out that because pet shops
and breeders are not regulated, there are a host of
problems. Birds, animals and fish are sold in an
unscientific and cruel manner; there are no records of
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sale/purchase or inventory of species; endangered
species are freely sold; the pet shop industry is not
taxed, and so on.
1.2.7 Blue Cross of Hyderabad, in its
representation to the Commission, pointed out that
many animals sold in pet trade are illegally captured or
bred; animals in pet shops (there are over 3 lakh pet
shops in India) are confined to unnatural and
unsuitable conditions and develop severe irreversible
psychological problems; and protected wildlife are sold
in open markets without any record-keeping or
inventories.
1.2.8 Blue Cross of India Madras pointed out that
the rules under question were made after extensive
consultations with many in the trade and industry and
members of the kennel clubs as well as veterinarians
and other professionals.
1.2.9 In its representation, Friendicoes-SECA said
that no pet shop in Delhi or across the country gives a
receipt for the sale of animals, and that varied prices are
quoted for the same breed depending upon opportunity.
Further, it said that since pet shops do not pay any kind
of service or value added tax, huge losses were being
caused to the government, especially since the industry
turnover ran into several thousand crores per year (Rs.
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80,000 crore, as cited by several representations). It
said that there was an urgent need to regulate this
trade, and set specific rules on what could be sold and
how it could be sold.
1.2.10 PFA Balotra (Rajasthan) provided some
insights into pet trading practices in India. Its
representation said that there are approximately 450
pet shops in Delhi alone, and every tier-II city in the
country has at least 200 shops where live animals of
various species can be bought as pets. Besides these,
there are websites where trading of pets happens on a
large scale. Some shops also offer “home delivery” or
“book in advance” options. According to its
representation, there is no licensing authority for these
shops: for example, the (Delhi) Municipal authority
licenses only meat shops; the Animal Husbandry
Department licenses only cattle; the Forest Department
does not regard pet shops as being within its mandate.
As a result, pet shops end up obtaining licenses to
operate as medical stores, general merchandise stores,
pet supplies stores, etc., but in practice, continue to
store and sell live animals. Its representation also
pointed out that while dog breeders are specifically
required to obtain a registration certificate from AWBI,
none of them in fact obtain such certificates, and their
practices continue unregulated.
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1.2.11 PFA Fatehabad unit, besides several others,
drew attention to the practice of disposal of waste from
pet shops. Waste from pet shops is allowed to mix with
household waste that pollutes the neighbourhood as
well as the ground water. Dead animals are dumped
with household waste or buried in the neighbourhood,
which leads to more contamination, and no post
mortem is conducted to rule out infectious diseases that
could spread to humans. They suggest that the spread
of avian/bird flu may have a close relation with the
manner in which animals are indiscriminately bred and
sold in the country.
C. Present report of the Commission
1.3.1 The 20th Commission took note of the letter
from AWBI and the various representations received by
animal rights and animal welfare organisations
throughout the country in this regard. The Commission
recognised the need to examine whether the Central
Government is empowered to issue rules under the
relevant legislation for the purpose of regulating pet
shops, dog breeding and aquarium fish breeding. In
light of this, the Commission has undertaken the
present study on “Need to Regulate Pet Shops and
Dog and Aquarium Fish Breeding” in order to provide
the Government with its views on the scope of its
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powers, and examine the necessity of regulating such
practices.
1.3.2 In order to undertake the present study, the
Commission formed a sub-committee comprising the
Chairman; Ms Dipika Jain, Associate Professor; Mr
Brian Tronic, Assistant Professor; and Ms Swati Malik,
Research Associate, Jindal Global Law School; and Ms
Sumathi Chandrashekaran, Consultant, Law
Commission of India, which finalised this report.
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CHAPTER II
LEGAL FRAMEWORK GOVERNING PET SHOPS, DOG BREEDING AND AQUARIUM FISH
BREEDING IN INDIA
2.1 The Ministry of Environment, Forest and
Climate Change had published draft pet shop rules
prepared by Animal Welfare Board of India13 in 2010.
According to the Preamble to the Draft Pet Shop Rules,
2010, as available on the website of MoEF (a slightly
different version of which is also available on the website
of AWBI14):
“[L]ive animals are often showcased, exhibited and traded like commodities in pet shops or other shops selling animals alive. The ways in which many animals and birds are handled or managed are not always ideal. Many pet shops are established next to butcher shops where, carcasses of slaughtered animals/ birds are hung for sale in full vision of the live animals waiting to be sold. Cages are often crammed with animals or birds and exhibited out side the shops along with hoardings or in front of shops in open sun light. There is presently no deterrent law specific to ensure humane handling and comfort to animals in pet shops. The power to close shops lies with local bodies who grant permission to open shops (license). These rules are
13 Section 9 of the Prevention of Cruelty against Animals Act, 1960 states that the functions of the Board shall be to advise the Central Government on the making of rules under this Act with a view to preventing unnecessary pain or suffering to animals generally, and more particularly when they are being transported from one place to another or when they are used as performing animals or when they are kept in captivity or confinement. Section 10 states that the Board may, subject to the previous approval of the Central Government, make such regulations as it may think fit for the administration of its affairs and for carrying out its functions. 14 ANIMAL WELFARE BOARD OF INDIA, DRAFT PET SHOP RULES, 2010, available at http://www.awbi.org/awbi-pdf/draftpetshoprules.pdf.
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made to ensure that live animals sold as pets or as commodity, receive proper care and stress free humane treatment so long as they are in the possession of shop keepers.” 15
2.2 These rules, once notified, would be enforced
in all pet shops in India. Similarly, the rules relating to
dog breeding and aquarium fish breeding would be
enforced on respective breeders. However, the Ministry
of Law and Justice found that Centre did not have the
authority to enact these rules under the Prevention of
Cruelty to Animals Act, 1960.
2.3 As a result of the same, the following legal
questions have been raised:
1. Has Parliament delegated power to the Central
Government under the Prevention of Cruelty to
Animals Act, 1960 to frame rules to regulate pet
shops, dog breeding and aquarium fish
breeding, and other wildlife not governed by the
Wildlife Protection Act, 1972?
2. How has the rule making power of the Centre
been construed by the courts?
15MINISTRY OF ENVIRONMENT AND FORESTS, DRAFT PET SHOP RULES 2010, available at http://www.moef.nic.in/downloads/public-information/Pet%20Shop%20Rules%202010.pdf (last accessed on Aug. 12, 2015, 3.30 pm)
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A. Question 1.
2.4.1 In its response to MoEF on the issue, as
discussed above, the MLJ suggested that, because pet
shops, dog breeding, and aquarium fish breeding are
not listed in section 38(2) of the PCA Act among the
enumerated areas of regulation, the PCA Act does not
confer authority on the Central Government to regulate
them. However, the AWBI’s proposed rules appear to fall
under section 38(2)(c) and 38(2)(l) of the PCA Act, which
empower the Central Government to make rules
concerning “the conditions to be observed for preventing
the overcrowding of animals; the period during which,
and the hours between which, any class of animals shall
not be used for draught purposes” and “any other
matter which has to be, or may be prescribed.”
2.4.2 More importantly, section 38(1) confers
general power on the Central Government to make rules
to carry out the purposes of the PCA Act.16 Section 38(2)
of the PCA Act lists specific areas that the Central
Government may regulate, but these are merely non-
exclusive examples, and this list cannot be read to limit
the generality of the Central Government’s authority.17
16 See Prevention of Cruelty to Animals Act § 38(1): “The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules to carry out the purposes of this Act.”. 17 See Prevention of Cruelty to Animals Act § 38(2): “In particular, and without prejudice to the generality of the foregoing power, the Central Government may make rules providing for all or any of the following matters, namely . . . ” [emphasis added].
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Thus, despite the fact that pet shops, dog breeding or
aquarium fish breeding are not listed in section 38(2),
the Central Government can make rules regulating
these issues as long as the rules are intended to carry
out the purposes of the Act.
2.4.3 The purpose of the PCA Act, as stated in its
preamble, is “to prevent the infliction of unnecessary
pain or suffering on animals.” The purpose of the PCA
Act can be further ascertained from the various forms
of “cruelty” listed under section 11(1). This section
covers the following under the purview of cruelty:
(a) Beating, kicking, over-riding, over-driving, over-
loading, torturing, causing unnecessary pain or
suffering;
(b) Employing any animal which is unfit to be so
employed;
(c) Wilfully and unreasonably administering any
injurious drug or injurious substance;
(d) Conveying or carrying an animal in such a
manner as to subject it to unnecessary pain or
suffering;
(e) Keeping or confining any animal in any cage or
receptacle which does not measure sufficiently in
height, length and breadth to permit the animal
a reasonable opportunity for movement;
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(f) Keeping for an unreasonable time any animal
chained or tethered upon an unreasonably heavy
chain or chord;
(g) Neglecting to exercise or cause to be exercised
reasonably any dog habitually chained up or kept
in close confinement;
(h) Failing to provide an animal with sufficient food,
drink or shelter;
(i) Abandoning any animal without reasonable
cause in circumstances which render it likely
that it will suffer pain by reason of starvation or
thirst;
(j) Wilfully permitting any animal to go at large in
any street while the animal is affected with a
contagious or infectious disease, or without
reasonable excuse permits any diseased or
disabled animal to die in any street;
(k) Offering for sale or without reasonable cause,
having any animal which is suffering pain by
reason of mutilation, starvation, thirst,
overcrowding or other ill treatment;
(l) Mutilating any animal or killing any animal
(including stray dogs) through strychnine
injections in the heart or any other unnecessarily
cruel method;
(m) Solely with a view to providing entertainment:
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(i) confining or causing to be confined any animals
(including tying an animal as bait in a tiger or
other sanctuary) so as to make it an object of prey
for any other animal; or
(ii) inciting any animal to fight or bait any other
animal.
(n) Organizing, keeping, using or acting in the
management of any place for animal fighting or
for the purpose of baiting any animal or
permitting or offering any place to be so used or
receiving money for the admission of any other
person to any place kept or used for any such
purposes;
(o) Promoting or taking part in any shooting match
or competition wherein animals are released from
captivity for the purpose of such shooting.
2.4.4 The preamble of the AWBI’s Draft Pet Shop
Rules, 2010 makes clear that the proposed rules fall
under the purposes of Act — “In the last decade, with
the liberalization of the economy and the increase in
purchasing power, several new trades have come into
being. One of these is the mushrooming, and yet
unregulated pet trade in live animals, that are
capable of experiencing discomfiture, pain, hunger
and thirst just as humans do. Live animals are
exhibited and traded like commodities in pet and pet
17
product shops. These Rules are intended to ensure
their humane handling, and to regulate this trade.
Since the mute cannot complain, the responsibility to
ensure compassionate and empathetic handling is
greater. Since pet shops are commercial
establishments, they have to be regulated with
licenses, and parameters of operational standards.
Uniform practices and procedures have to be
prescribed, and adhered to by those partaking in the
profits derived from this brand of commercial activity.
Consequently, the Pet Shop Rules have been formulated
. . . .”18 [emphasis added].
2.4.5 The rules on pet shops, dog breeding and
aquarium fish breeding are also justified under the
principles of the Indian Constitution. Article 51A(g) of
the Constitution states that “It shall be the duty of every
citizen of India . . . . to protect and improve the natural
environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures.”19
2.4.6 It must also be noted that the PCA Act has a
built-in check to ensure that the Central Government
does not exceed its authority when drafting rules.
18 ANIMAL WELFARE BOARD OF INDIA, DRAFT PET SHOP RULES, 2010, available at http://www.moef.nic.in/downloads/public-information/rev-draft-pet-shop-rules.pdf (last accessed on Aug. 12, 2015). 19 India Const. art. 51A(g).
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Section 38A provides that all rules and regulations must
be laid before each House of Parliament.20
2.4.7 Section 3 of the PCA Act further
substantiates the purpose of the Act. The section
provides for the duties of persons having charge of
animals, and states that, “It shall be the duty of every
person having the care or charge of any animal to take
all reasonable measures to ensure the well-being of
such animal and to prevent the infliction upon such
animal of unnecessary pain or suffering.”
2.4.8 Regarding the issue of species covered under
the WPA, 21 there is a clear and complete prohibition on
the trade or rearing of such species and therefore, the
provisions of the WPA must be strictly enforced to
ensure their implementation. The present opinion,
therefore, in its reference to the rules on pet shops, dog
breeding and aquarium fish breeding, relates only to
20 Prevention of Cruelty To Animals Act, 1960, § 38A. 21 Section 39(1) states that every wild animal (other than vermin) is considered state property, and Section 39(3) provides that no person is allowed to (a) acquire or keep in his possession, custody, or control, (b) transfer to any person, whether by way of gift, sale or otherwise, or (c) destroy or damage such Government property without previous permission from the Chief Wild Life Warden. According to Section 40(2) of the Act, no person shall “acquire, receive, keep in his control, custody or possession, sell, offer for sale, or otherwise transfer or transport any animal specified” in Schedule I or Part II of Schedule II of the Act, unless granted an authorization to do so by “the Chief Wildlife Warden or the authorised officer.” (Schedule I and Schedule II of the Act lists animals that are protected under the WPA.) Further, Section 43(a) further prohibits the trade, commerce, and transfer of certain rare and endangered wild animals. Additionally, the Act, under Section 49, prohibits the purchasing or acquiring of any captive or wild animal from anyone except a licensed dealer or person otherwise authorized to sell the animal.
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those species that are not regulated or prohibited under
the WPA.
2.4.9 Based on this analysis of the legal position,
the representations received by the Commission in this
regard, as well as the large number of reports on the
issue, it appears that the provisions of the law are
violated with impunity by pet shops and breeders. In
these circumstances, the Central Government must
seriously take cognizance of the issue and regulate the
trade in pet shops, and practices followed in dog
breeding and aquarium fish breeding.
B. Question 2.
2.5.1 This interpretation is supported by a leading
treatise, which explains how to construe delegated
rulemaking authority:
“A normal feature of enabling Acts is first to grant
the power to make rules etc., in general terms, e.g.,
‘to carry out the purposes of this Act’ and then to
say that ‘in particular and without prejudice to the
generality of the foregoing provisions’, such rules
etc., may provide for a number of enumerated
matters. If power is conferred to make subordinate
legislation in general terms, the particularization of
20
topics is construed as merely illustrative and does
not limit the scope of the general power.”22
2.5.2 Similarly, discussing the scope of authority
delegated by the Industrial Employment (Standing
Orders) Act, 1946, the Supreme Court stated, “Section
15(1) confers wide powers on the appropriate
Government to make rules to carry out the purposes of
the Act; and s. 15(2) specifies some of the matters
enumerated by clauses (a) to (e), in respect of which
rules may be framed. It is well-settled that the
enumeration of the particular matters by sub-s. (2) will
not control or limit the width of the power conferred on
the appropriate Government by sub-s. (1) …” 23 The
Court reiterated this in Afzal Ullah v. Uttar Pradesh,24
where it considered the delegation of authority under
the United Provinces Municipalities Act. Section 298(1)
of the said Act stated that a board was empowered to
make any bye-laws “consistent with this Act,” while
Section 298(2) dealt with bye-laws which can be made
in specific situations (e.g., markets, slaughterhouses,
sale of food). The Court held that: “It is now well-settled
that the specific provisions such as are contained in the
several clauses of s. 298(2) are merely illustrative and
they cannot be read as restrictive of the generality of
22 JUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION 1008−09 (12th ed. 2010) (and cases cited therein). 23 Rohtak and Hissar Districts Electric Supply Co. v. U.P., (1966) 2 SCR 863. 24 (1964) 4 SCR 991
21
powers prescribed by s. 298(1) … If the powers specified
by s. 298(1) are very wide and they take in within their
scope bye-laws like the ones with which we are
concerned in the present appeal, it cannot be said that
the powers enumerated under s. 298(2) control the
general words used by s. 298(1). These latter clauses
merely illustrate and do not exhaust all the powers
conferred on the Board …”
2.5.3 In addition, the Supreme Court has made
clear that the express text of a statute is not
determinative of the scope of authority it delegates, but
rather the purpose (inferred from the statute’s text)
must also be considered. In Commissioner of Central
Excise and Customs v. Venus Castings Ltd.,25 the Court
noted that, “In holding whether a relevant rule to be
ultra vires it becomes necessary to take into
consideration the purpose of the enactment as a whole,
starting from the preamble to the last provision thereto.”
Similarly, in Maharashtra State Board of Secondary and
Higher Secondary Education v. Paritosh Bhupesh
Kumar,26 the Court stated that “the question whether a
particular piece of delegated legislation … is in excess of
the power … conferred on the delegate has to be
determined with reference … to the specific provisions
contained in the relevant statute conferring the power
25 (2000) 4 SCC 206. 26 (1984) 4 SCC 27.
22
to make the rule, regulation, etc. and also the object and
purpose of the Act as can be gathered from the various
provisions of the enactment.” The Court noted that a
subsidiary body has the proper authority so long as “the
rules or regulations made by it have a rational nexus
within the object and purpose of the Statute.”27 The
Court applied a three-pronged test to uphold the
regulation in that case: (1) whether the provisions of the
regulations fall within the scope and ambit of the power
conferred on the delegate; (2) whether the regulations
made are to any extent inconsistent with the provisions
of the enabling Act; and (3) whether they infringe any of
the fundamental rights or other restrictions or
limitations imposed by the Constitution.28
2.5.4 For a delegation of legislative authority to be
valid, the legislative policy and principle must be
adequately laid down. 29 But this is not an onerous
requirement—the legislative policy can be determined
from the text of the statute in question. In Makhan Singh
v. State of Punjab, 30 for example, the Supreme Court
27 (1984) 4 SCC 27; see also General Officer Commanding-in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC 351 (rules “must also come within the scope and purview of the rule making power of the authority framing the rule”). 28 JUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION 1012 (12th ed. 2010) (and cases cited therein). 29 Tata Iron and Steel Co. ltd. V. Workmen, (1972) 2 SCC 383; see also Makhan Singh v. State of Punjab, (1964) 4 SCR 797 (“[I]f the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules, then such delegation is not impermissible.”). 30 Makhan Singh v. State of Punjab, (1964) 4 SCR 797 (“Not only is the legislative policy broadly indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority.”).
23
looked to both the preamble of The Defence of India Act,
1962 and the list of particular delegated powers in
Section 3(2) to determine the legislative policy and
uphold the general grant of rulemaking authority in
Section 3(1). Similarly, in D K Trivedi v. State of
Gujarat, 31 the Court found sufficient guidelines for
exercising rulemaking power under Section 15(1) of the
Mines and Minerals (Regulation and Development) Act,
1957 by looking at the object for which the power was
conferred and the illustrative matters set forth in other
sections.
2.5.5 In the UK, courts have similarly held that the
doctrine of ultra vires “ought to be reasonably, and not
unreasonably, understood and applied, and that
whatever may fairly be regarded as incidental to, or
consequential upon, those things which the Legislature
has authorized, ought not (unless expressly prohibited)
to be held, by judicial construction, to be ultra vires.”32
A subsidiary body (like the MoEF) is empowered “to do
not only that which is expressly authorized but that
which is reasonably incidental to or consequential upon
that which is in terms authorized.”33 Other cases use
similar language. In Commissioners of Customs and
Excise v. Cure & Deeley Ltd.,34 it was held that “a court
31 1986 AIR SC 1323. 32 Attorney General v. Fulham Corporation, [1921] 1 Ch. 440, 450 (Chancery Div. 1920). 33 Id 34 [1962] 1 Q.B. 340.
24
is bound before reaching a decision on the question
whether a regulation is intra vires to examine the
nature, objects, and scheme of the piece of legislation
as a whole, and in the light of that examination to
consider exactly what is the area over which powers are
given by the section under which the competent
authority is purporting to act.”
2.5.6 Indian courts have also deliberated on the
specific issue of the scope and meaning of the
Prevention of Cruelty to Animals Act, 1960. In the case
of AWBI vs A Nagaraja,35 the Supreme Court considered
whether Jallikattu and bullock-cart races in Tamil Nadu
and Maharashtra violate the PCA Act. The Court noted
that the Act is a welfare legislation and, as such, should
be liberally construed in favour of the weak and infirm.36
The Court also stated Section 11 of the Act, which
prohibits cruel treatment, “is a beneficial provision
enacted for the welfare and protection of the animals
and it is penal in nature. Being penal in nature, it
confers rights on the animals and obligations on all
persons, including those who are in-charge or care of
the animals . . . to look after their well-being and
welfare.” 37 After considering in-depth reports of how
animals are treated during these events, the Court held
that the Jallikattu, bullock-cart races, and similar
35 Animal Welfare Board of India vs A Nagaraja & Others, (2014) 7 SCC 547 36 Id. at ¶ 33. 37 Id. at ¶ 37.
25
events per se violate Sections 3, 11(1)(a), and 11(1)(m)(ii)
of the Act. The Court rejected arguments that these
events were part of local culture and tradition because
the PCA Act, being a welfare legislation, “over-shadows
or overrides the so-called tradition and culture.”38 The
Court reiterated, “every species has an inherent right to
live and shall be protected by law, subject to the
exception provided out of necessity. Animal has also
honour and dignity which cannot be arbitrarily deprived
of and its rights and privacy have to be respected and
protected from unlawful attacks.”39
2.5.7 The Court also observed, among other things,
that AWBI and state and central governments must take
steps to (a) see that the persons-in-charge of the care of
animals, take reasonable measures to ensure the well-
being of animals; and (b) to prevent the infliction of
unnecessary pain or suffering on the animals. The
Court further noted that it expected that Parliament,
“would elevate rights of animals to that of constitutional
rights, as done by many of the countries around the
world, so as to protect their dignity and honour.”40
2.5.8 In the present case, rules regarding pet
shops, dog breeding, and aquarium fish breeding clearly
fall within and have a rational nexus to the object and
38 Id. at ¶ 54. 39 Id. at ¶ 61. 40 Id. at ¶ 91.9.
26
purpose of the Prevention of Cruelty to Animals Act, i.e.,
they are intended to prevent cruelty and harm to
animals. Neither are the rules inconsistent with the
enabling Act, nor do they infringe any fundamental
rights or constitutional provisions. Thus, the MoEF has
authority to make these rules.
27
CHAPTER III
RECOMMENDATIONS
3.1 In light of the above discussion, the Commission
is of the opinion that firstly, based on an analysis of the
legal position, the representations received by the
Commission, and the large number of reports on the
issue, it appears that the provisions of the law are
violated with impunity by pet shops and breeders. In
these circumstances, the Commission recommends that
the Central Government must seriously take cognizance
of the issue and regulate the trade in pet shops, and
practices followed in dog breeding and aquarium fish
breeding. Secondly, rules regarding pet shops, dog
breeding, and aquarium fish breeding clearly fall within
and have a rational nexus to the object and purpose of
the Prevention of Cruelty to Animals Act, and the MoEF
has authority to make these rules.
3.2 Given the gravity of the issue, and the fact
that the rules on pet shops, dog breeding and aquarium
fish breeding have been drafted in consultation with
28
stakeholders and lying pending since 2010, the
Commission recommends that the rules be notified and
implemented at the earliest.
Sd/-
[Justice A.P. Shah] Chairman
Sd/-
[Justice S.N. Kapoor]
Member
Sd/-
[Prof. (Dr.) Mool Chand Sharma]
Member
Sd/-
[Justice Usha Mehra]
Member
--
[P.K. Malhotra]
Member (Ex-officio)
--
[Dr. Sanjay Singh]
Member (Ex-officio)
Sd/-
[Dr. G. Narayana Raju] Member-Secretary